Opinion
No. E073990
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. OLMAN ALVAREZ-PADILLA, Defendant and Appellant.
Olman Alvarez-Padilla, in pro. per.; and Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR033238) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. Olman Alvarez-Padilla, in pro. per.; and Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Olman Alvarez-Padilla guilty of three counts of lewd acts on a child under 14 years of age (Pen. Code, § 288, subd. (a); counts 1, 2 & 5); one count of oral copulation or sexual penetration of a child under 10 years of age (§ 288.7, subd. (b); count 3); and one count of sexual intercourse or sodomy of a child under 10 years of age (§ 288.7, subd. (a); count 4). Defendant was sentenced to a determinate term of six years, plus a total indeterminate term of 40 years to life in state prison as follows: 25 years to life on count 4; a consecutive 15 years to life on count 3; a consecutive middle term of six years on count 1; and concurrent terms of six years on counts 2 and 5. The court found defendant did not have the ability to pay for various fees but ordered defendant to pay a $1,000 restitution fine. Defendant appeals from the judgment. Based on our independent review of the record, we find no arguable issue and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise indicated.
The jury was unable to reach a verdict on another count of oral copulation or sexual penetration of a child under 10 years of age (§ 288.7, subd. (b); count 6), and the trial court declared a mistrial as to that count. Count 6 was later dismissed.
II
FACTUAL BACKGROUND
Defendant's convictions stem from four to five instances of sexual abuse, between August 1, 2015 and September 13, 2015, as described by the victim, Diana Doe, who was nine years old at the time. Diana was 14 years old at the time she testified in 2019. During the incidents, Diana lived in a trailer with her mother, her sister, and defendant. Diana's mother was married to defendant for approximately two years before they decided to divorce.
A. First Incident
While Diana's mother and her sister were watching a scary movie in the living room, Diana went to sleep in her mother's bedroom. She closed the bedroom door but did not lock the door. Defendant entered the room, closed and locked the bedroom door, and asked Diana whether she knew what a "pene" was. When Diana said "no," defendant showed her his penis. Defendant then told Diana to "suck" his penis, and she put her mouth on his penis for about three or four minutes. Diana's mouth was closed but at some point her tongue touched defendant's penis.
Thereafter, defendant told Diana to touch his chest and he touched Diana's chest at the same time. Defendant also touched Diana's vagina under her underwear. Diana felt pain in her vagina when defendant moved his fingers. After around two or three minutes, defendant told Diana to leave because her mother was going to come in. He also told Diana not to tell anyone because she would get in trouble. Diana did not tell anyone and went into the bathroom to brush her teeth because it felt "nasty" inside her mouth.
B. Second Incident
The second incident occurred a couple of days after the first incident, again in Diana's mother's bedroom. Diana had gone with her mother and sister to a friend's house a couple of doors away. Diana returned to the trailer early while her mother and sister stayed behind. When Diana arrived, defendant told her he wanted to tell her something and asked her to follow him. Diana followed defendant into her mother's bedroom, and defendant locked the door.
While inside the bedroom, defendant pulled down his shorts and told Diana to put her mouth on his penis. Diana complied, and defendant put his penis inside her mouth. Defendant removed his penis and asked Diana if she wanted to see something. Diana said, "yes," and she saw liquid coming out of defendant's penis, some of which went onto the floor.
During the incident, Diana's sister knocked on the bedroom door and defendant told her to wait. Defendant pulled up his pants, Diana cleaned her mouth with a tissue, and defendant opened the bedroom door. Diana's sister asked, "what happened," and defendant said, "nothing."
C. Third Incident
The third incident occurred a couple of days later while Diana's mother was in the shower and her sister was in the bathroom with her mother. Diana's mother called out to Diana and asked her to bring her a towel. Diana did this and returned to the living room where defendant was standing.
Defendant pulled down his shorts and Diana put her mouth on his penis. She did not remember defendant saying anything. Diana heard the shower turn off, so she stood up and defendant pulled up his shorts. Diana was about to go into the bathroom with her mother but defendant held her hand and told her to kiss him on the mouth. Diana quickly kissed defendant on his mouth.
D. Fourth Incident
The fourth incident occurred while Diana's mother was watering the garden and her sister was at a cousin's house. Diana was in her room with the door open. She was packing to get ready to go over to the cousin's house. Defendant entered her bedroom, and Diana asked him if everything was okay. Defendant replied, "yes," and told her to face the bed. Defendant pulled down his shorts and underwear.
Defendant thereafter pulled down Diana's pajama pants, leaned her over, and inserted his penis inside Diana's buttocks. Diana felt pain and told defendant to stop because it was hurting. Defendant did not stop and continued to move back and forth. Diana again told defendant to stop or she would scream. He then stopped. Diana was not sure whether defendant put his penis in her anus or vagina but did remember feeling his penis inside.
Diana went to the bathroom and saw blood on the toilet paper while she was cleaning herself. Defendant pulled up his shorts and underwear and left the room. Diana told defendant about the blood, and he replied that it was normal and that it happened to girls.
The last incident occurred on September 15 or 16, 2015. Defendant left the home on September 20 or 21, 2015, after defendant and Diana's mother got into an argument. Diana did not disclose the sexual abuse incidents to her mother because she was afraid of getting in trouble. She eventually disclosed the sexual abuse perpetrated by defendant to her grandmother and therapist in November 2015. During the therapy sessions, the therapist had a therapy dog. Diana's mother informed the therapist that she had observed some suspicious circumstances between defendant and Diana, such as seeing them come out of a dark room holding hands, and she had the "feeling maybe something was going on."
Over the defense's objection, the trial court allowed the prosecution to play the CAC interview video of Diana to the jury. --------
Defendant's defense was that he did not sexually abuse Diana, that Diana's mother fabricated the allegations, that Diana's statements were inconsistent and unsupported by physical evidence, and that Diana was at her father's home during the alleged incidents. In support of his defense, defendant called an investigator to testify. The investigator testified that when he interviewed Diana's grandmother, she stated that Diana's mother lied "constantly." The defense also called a forensic pediatric nurse practitioner who examined Diana after she reported the allegations. The nurse testified that during her examination of Diana, she did not observe any signs of scarring or tearing in Diana's anal or vaginal areas. The nurse acknowledged that any scarring or tearing ordinarily heals within 24 to 72 hours.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, without supporting evidence or citation to authority, defendant appears to argue (1) trial court error committed during jury selection because the court allowed the prospective jurors to use cell phones and one of the prospective jurors took a picture of him; (2) ineffective assistance of counsel when counsel failed to call certain witnesses on his behalf and selected two jurors defendant opposed; (3) prosecutorial misconduct based on the prosecutor failing to disclose all relevant evidence, the prosecutor informing the testifying detective about the victim's testimony, and the prosecutor seeing one of the jurors at a restaurant; (4) victim's testimony that was not credible and inconsistent; and (5) insufficient evidence.
Based on a thorough review of the record, we reject these contentions. There is no evidence in the record to suggest defendant received an unfair trial when purportedly a prospective juror took a picture of defendant. Even assuming such an error occurred, the error was harmless. "'It is well settled that even if the trial court erred in denying a defendant's motion to remove a juror for cause, that error will be considered harmless if "[n]one of the prospective jurors whom defendant found objectionable actually sat on his jury." [Citations.]'" (People v. Boyette (2002) 29 Cal.4th 381, 419.)
There is also no evidence in the record to suggest the prosecutor failed to disclose all relevant evidence to the defense or that the prosecutor committed misconduct. Prosecutorial misconduct can violate either federal or state law. "'"When a prosecutor's . . . behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated."' [Citations.] '"Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury." [Citation.]' [Citation.] Misconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected. [Citations.]" (People v. Shazier (2014) 60 Cal.4th 109, 127.)
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights—such as a comment upon the defendant's invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action '"so infected the trial with unfairness as to make the resulting conviction a denial of due process."' [Citations.]" (People v. Riggs (2008) 44 Cal.4th 248, 298.) There is no evidence in the record to suggest defendant received an unfair trial or that the prosecutor used deceptive or reprehensible methods to attempt to persuade the jury.
Furthermore, even assuming, arguendo, defendant received ineffective assistance of counsel, defendant cannot establish prejudice. To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and, of particular importance here, (2) the deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To show prejudice, defendant must show a reasonable probability he would have received a more favorable result had his counsel's performance not been deficient. (Strickland, at p. 694; Ledesma, at pp. 217-218.) Here, as explained below, we conclude that defendant has failed to meet his burden of establishing a reasonable probability he would have obtained a more favorable result at trial but for his counsel's failure to call certain witnesses or to remove two jurors defendant opposed because there was more than sufficient evidence in the record to support the jury's finding of guilt.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) "While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the [judgment], and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury." (People v. Boyer (2006) 38 Cal.4th 412, 479-480 (Boyer), italics added.)
"The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.] 'Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.' [Citation.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933; People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
In this case, there was ample evidence in the record from which the jury could make a reasonable inference that defendant committed the sexual acts charged in counts 1 through 5. Diana, providing specific details, testified to the four incidents in which defendant sexually abused her, and the jury found Diana's testimony credible. It is the exclusive province of the jury to make credibility findings, not this court. (Boyer, supra, 38 Cal.4th at p. 480.)
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. MENETREZ
J.